Himachal Pradesh High Court
Madan Verma vs . State Of H.P. on 31 July, 2024
Madan Verma Vs. State of H.P. .
Cr. Appeal No. 344 of 2023 31.07.2024 Present: Mr. Anirudh Sharma, Advocate for the appellant.
Mr. Jitender Sharma, Additional Advocate General.
The present appeal is directed against the order dated 11.01.2023, passed by learned Additional Sessions Judge-II, Solan (learned Trial Court) vide which the surety bond furnished by the appellant was cancelled and forfeited to the state of H.P.
2. Briefly stated, the facts giving rise to the present appeal are that the appellant stood surety for his son Ashish Verma undertaking to produce him on each and every date of hearing and in case of default to pay ₹50,000/- to the State of H.P. Ashish Verma failed to appear on 20.12.2019 and learned Special Judge-III, Solan ordered the issuance of a non-bailable warrant of arrest and initiation of proceedings under Section 446 of Cr.P.C.
Notice was served upon the appellant/surety but he failed to appear before the Court on 11.01.2023 on which date the learned Special Judge-III, Solan ordered the District Collector to realise the amount of ₹50,000/- as an arrears of land revenue. Being aggrieved from the order, the appellant has approached this Court.
::: Downloaded on - 01/08/2024 03:11:57 :::CIS3. Mr. Anirudh Sharma, learned counsel for the .
appellant/surety submitted that the Court is bound to issue a notice before the forfeiture of the surety bonds and in the absence of the same, the surety bonds could not have been forfeited. He relied upon Narata Ram versus State of H.P 1994 CriLJ 491, Dhameswar Sahoo and another vs. State of Orissa 2014 CriLJ 4821, Bir Singh vs. State of H.P. and another Cr. Appeal No. 247 of 2023 decided on 21.03.2024 and Makhan Lal versus Union Territory of Jammu & Kashmir CrM(M) No. 364 of 2022 decided on 29.05.2023 in support of his submission.
4. Mr. Jitender Sharma, learned Additional Advocate General for respondent/State submitted that there is no requirement to issue a notice before the forfeiture of the bond and the requirement arises after the bond has been forfeited under Section 446 Cr.P.C. Hence, he submitted that there is no infirmity in the order passed by learned Trial Court and prayed that the appeal be dismissed.
5. Section 446 of Cr.P.C. reads as under:
446. Procedure when the bond has been forfeited.
--(1) Where a bond under this Code is for appearance, or production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where, in respect of any other bond under this Code, it is proved to the ::: Downloaded on - 01/08/2024 03:11:57 :::CIS satisfaction of the Court by which the bond was taken, or of any Court to which the case has .
subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.
6. It is apparent from the bare perusal of the Section that its marginal note provides the procedure when the bond had been forfeited. Sub Section (1) provides that when the bond has been forfeited and this fact has been proved to the satisfaction of the Court, the Court shall record the grounds of such proof and may call upon the person bound by such bond when to pay the penalty thereof or to show cause as to why it should not be paid. It is also apparent from Form-48 provided in Schedule II of the Cr.P.C. that the surety is informed of the fact that the accused had failed to appear before the Court and because of such default the surety had forfeited the sum of rupees undertaken to be paid by him. Thereafter, it asks the surety to pay the penalty or show cause as to why the payment of the amount should not be enforced against the surety. It was held in Fatehchand Wadhumal v. Emperor, AIR 1940 Sind 136 that when the Magistrate issued a notice to the surety to show cause why the bond should not be forfeited, the procedure was irregular. The Court is bound to forfeit the bond when the accused does not appear and there is no ::: Downloaded on - 01/08/2024 03:11:57 :::CIS provision for issuing notice to the surety to show cause .
why the bond should not be forfeited. It was observed as under:
"3. The Magistrate shall issue a warrant directing the arrest of the accused, and only on the appearance of the accused before him does the Magistrate then discharge the surety; but in this case, the Magistrate appears to have discharged the surety before the accused appeared or was brought before him. He appears to have issued notice to the surety to show cause why the bond should not be forfeited and also issued notice to the accused, and on the same day, though the accused was absent, to have discharged the surety under Section 502 of the Cr PC. All this is quite irregular. Section 514 of the Cr PC, requires the Court to record grounds of the proof that the bond has been forfeited and a bond for appearance is forfeited when the accused does not appear, but it does not require the Court to issue notice to show cause why the bond should not be forfeited. The Court may issue notice to show cause why the penalty resulting from the forfeiture should not be imposed, and I have again and again advised Magistrates to refer to the relevant Sections of the Code of Criminal Procedure, to read them and to follow them when mistakes such as these would not occur...." (Emphasis supplied)
7. Hon'ble Supreme Court also held in Ghulam Mehdi v. State of Rajasthan, AIR 1960 SC 1185 that notice has to be given to the surety before recovering the money from him to show cause as to why the amount be not recovered from him. It was observed: -
"4. It is not necessary to go into the first point in our opinion unless notice is given to the surety under Section 514(1) to show cause why the surety bond be not paid no proceedings for recovery under Section 514 can be taken. Section 514(1) & (2) is as follows:::: Downloaded on - 01/08/2024 03:11:57 :::CIS
"Section 514. (1) Whenever it is proved to the satisfaction of the court by which a bond .
under this Code has been taken, or of the Court of a Presidency Magistrate or Magistrate of the first class, or, when the bond is for appearance before a court, to the satisfaction of such court, that such bond has been forfeited, the court shall record the grounds of such proof and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid. Section 514(2) If sufficient cause is not shown and the penalty is not paid, the court may proceed to recover the same by issuing a r warrant for the attachment and sale of the moveable property belonging to such person or his estate if he be dead."
5. This provision shows that before a surety becomes liable to pay the amount of the bond forfeited it is necessary to give notice why the amount should not be paid and if he fails to show sufficient cause only then can the Court proceed to recover the money. In the present case, the appellant was not called upon to show cause why the penalty should not be paid. Before a man can be penalised forms of law have to be observed and an opportunity has to be given to a surety to show cause why he should not be made to pay and as in this case that was not done, proceedings cannot be said to be in accordance with law and should therefore be quashed."
8. The Division Bench of Orissa High Court held in Jagannath Rout v. State of Orissa 1975 Cri LJ 1684 that the Court has to satisfy itself that a bond had been forfeited, which means that the condition laid down in the bonds has been contravened and thereafter the Cort has to issue show cause as to why the amount be not released from him. It was observed:-
::: Downloaded on - 01/08/2024 03:11:57 :::CIS"4. These two sub-sections thus contemplate two different stages in the proceeding before the .
Magistrate. In the first stage, the Court has to satisfy itself that a bond has been forfeited which means that the condition imposed upon the executant of the bond and agreed to by him had been contravened. If the bond is for the appearance of the accused in Court, as it is in this case, the fact that the accused had absented himself is sufficient to constitute a breach of the condition and therefore for the forfeiture of the bond. If, on the other hand, the bond is for keeping peace or being of good behaviour, the person who alleges that the person bound under the bond has infringed me condition laid upon him, he must furnish proof to the satisfaction of the Court that there has been such infringement. It is only on such proof that the bond can be forfeited. There is thus a clear distinction between a bond for appearance on one side and a bond for keeping the peace or for being of good behaviour on the other. Doubtless in both cases, it has to be proved to the satisfaction of the Court that there has been a forfeiture of the condition of the bond and the Court has also to record the grounds of such proof. But so far as a bond for appearance is concerned, the very fact that the accused has failed to appear in Court on the date fixed is sufficient proof of the fact that the condition of the bond has been forfeited and no further proof is necessary. This is exactly what has happened in tins case. It is not disputed that on the date fixed, namely, 22-3-1973, the accused Mahadeb Behera for whom the petitioner stood surety failed to appear in Court. Consequently, there occurred a breach of the condition of the bond executed by the petitioner undertaking to cause the production of the accused on all dates of hearing, Doubtless, as I find from the record of the Magistrate, he has not expressly recorded his satisfaction that the bond has been forfeited that is only an irregularity which does not go to the root of the matter. The very fact that he proceeded to the second stage in directing the issue of a notice to the petitioner to show cause why the bond amount shall not be realised from him shows beyond doubt that the Magistrate was satisfied that the bond had ::: Downloaded on - 01/08/2024 03:11:57 :::CIS been forfeited. There is nothing in sub-section (1) of Section 514 which requires the Court at that .
stage to give notice to the executant of the bond to show cause against forfeiture before the Magistrate reaches the satisfaction that the bond has been forfeited.
5. The second stage relates to the realisation of the forfeited bond amount. At this stage, two alternatives are open to the executant of the bond. He may pay the amount mentioned in the bond and if this is done, no further proceeding is necessary.
He may in the alternative show cause why the amount mentioned in the bond should not be paid by him. If he shows such cause, it has to be duly considered by the Magistrate and necessary orders passed. There is no dispute that a show cause notice was issued to the petitioner and that he appeared in Court and showed cause. That was duly considered by the Magistrate and it is thereafter that he passed the impugned order. No exception therefore can be taken against the order passed by the learned Magistrate.
6. Considerable reliance is placed by the learned Counsel for the petitioner on a decision of the Supreme Court in Ghulam Mehdi v. State of Rajasthan, AIR 1960 SC 1185 : (1960 Cri LJ 1527). The question that arose for consideration in that case was whether a notice had to be given to the sureties to show cause why the penalty should not be paid.
After referring to sub-sections (1) and (2) of Section. 514, Criminal P.C. their Lordships stated at page 1186 thus:
"This provision shows that before a surety becomes liable to pay the amount of the bond forfeited it is necessary to give notice why the amount should not be paid and if he fails to show sufficient cause only then can the Court proceed to recover the money. In the present case, the appellant was not called upon to show cause why the penalty should not be paid. Before a man can be penalised forms o£ law have to be observed and an opportunity has to be given to a surety to show cause why he should not be made to pay and as in this case that was not done, proceedings cannot be said to be in ::: Downloaded on - 01/08/2024 03:11:57 :::CIS accordance with law and should therefore be quashed."
.
7. In the passage quoted above, their Lordships were clearly referring to the second stage of the proceeding, and as I have already pointed out, such a notice has been issued in this case. Nowhere have their Lordships stated that at the first stage, that is before forfeiting the bond executed for the appearance of the accused, and in a case where admittedly the accused has not appeared, the Court is bound to give a notice to the surety to show cause why the bond should not be forfeited. The bond executed being one for causing appearance of the accused and as admittedly there was no appearance of the accused, there was automatic contravention of the condition imposed upon the executant of the bond involving forfeiture thereof. It is not understood what further cause the surety could show at that stage. It was argued that had a notice is issued to the surety before the bond was forfeited, he could come and urged that the non-
appearance of the accused was due to circumstances beyond his control. That is a plea which the surety can urge at the second stage when he is called upon to show cause why he should not pay the penalty. The petitioner was given such an opportunity in this case.
8. The petitioner next relied upon a decision of the Patna High Court in Zulmi Kahar v. Emperor, AIR 1929 Pat 643 where Fazl All, J. (as he then was) referring to Section 514(1) Criminal P.C. stated that the proper course for a Magistrate proceeding to pass an order under Section 514(1) is to come to a finding based on some evidence that the bail bond executed by the surety has been duly forfeited and then only to issue a notice to show cause why the penalty should not be realised from him. Very shortly thereafter when a similar case came up before Macpherson, J. another learned Judge of the Patna High Court in Rajbansi Bhagat v. Emperor, AIR 1929 Pat 658, His Lord-ship observed: --
"There is a palpable distinction between bonds which are not and those which are for appearance before a Court. Proof other than is directly before the Court in its own record is required in the former and not in the latter. Where the Court had before it the order for bail, the bail bond and the fact that ::: Downloaded on - 01/08/2024 03:11:57 :::CIS the petitioners did not produce the accused, the provisions of Section 514(1) were .
substantially complied with and the High Court would not be justified in interfering in revision where there was no possible prejudice on the ground that the proceedings of the Sessions Judge under Section 514 were without jurisdiction as he had before him neither any proof that the bail-bond had beep forfeited nor did he record the grounds of such proof before he called upon the petitioners to show cause why the penalty of the bond should not be paia."
9. He distinguished the earlier decision of Fazl Ali, J. in AIR 1929 Pat 643 on the ground mat when in that case the accused failed to appear, his mother filed a petition stating that her son was unable to attend as he was suffering from fever and the Magistrate took action forthwith without any inquiry into the allegation and when owing, it was alleged, to illness the surety failed to appear to show cause why the bond should not be forfeited, at once made an order of forfeiture. In a subsequent Bench decision of that Court in Tarni Yadav v. State, AIR 1962 Pat 431 : ((1962) 2 Cri LJ 627), the learned Judges dissented from the view earlier expressed by Fad Ali, J. in AIR 1929 Pat. 643 and accepted the view expressed by Macpherson, J. in AIR 1929 Pat 658. That Bench held that where a bond has been executed by a surety undertaking to cause the appearance of the accused in Court and on the date fixed the accused does not appear in Court, there is a contravention of the condition of the bond entailing forfeiture thereof and no further inquiry is either necessary or contemplated at that stage. The Magistrate can straightway issue a notice to the surety to show cause why the penalty mentioned in the bond should not be recovered from him and it is at that stage that the surety is entitled to put forth such plea as would be available to him. With great respect, the view taken by the Division Bench in AIR 1962 Pat 431: ((1962) 2 Cri LJ 627) appears to me to be the correct view. This view has also been accepted by my learned brother R.N. Misra, J. in Harish Chandra Pradhan v. State, (1974) 1 Cut W.R. 356." (Emphasis supplied) ::: Downloaded on - 01/08/2024 03:11:57 :::CIS
9. It was held by this Court in Dhanvir vs. State .
1975 Cr.L.J. 1347 that a show cause notice cannot be issued before forfeiture of the bond. It was observed:
"A perusal of Section 514 will make it abundantly clear that the Court has to be satisfied in the first instance that a bond for appearance was taken and that the said bond has been forfeited for which it shall record the grounds. The order as to forfeiture of the bond, which is upon grounds to be recorded to the satisfaction of the Court, is almost automatic no sooner the condition of the bond is disregarded and the person fails to appear before the Court. It is only after such an order of forfeiture is made by the Court that a notice to show cause is to be issued to the surety either to pay the penalty or to show a sufficient cause why the penalty be not paid. Thereafter the Court has to consider the grounds made out by the surety in support of his case and after considering the case on merit, if the Court is dissatisfied with the reasons shown, an order is to be made for the realization of the penalty. In the instant case, this procedure has not been followed by the learned Magistrate. It is an irregularity to pass a single order forfeiting a surety bond and directing its amount to be realized as a penalty. Under Section 514, as I have stated before, two steps are essential:
(i) an order has to be passed forfeiting the bond
(ii) notice has to be served on the surety to show cause why the amount be not realized from him by way of penalty.
It has been held in Bishnu Dalai v. The State, AIR 1960 Orissa 108 : (1960 Cri LJ 842) that if the provisions of Section 514 are not followed it would amount to an illegality and not merely an irregularity. In the present case, the Magistrate issued a notice to show cause as to why the bonds be not forfeited. Such a notice is not even contemplated in Section 514. On 22-10-1971 when these persons failed to appear, the Magistrate had to see as to whether the bond was for the appearance before the Court and as to whether to the satisfaction of such Court, the bond ::: Downloaded on - 01/08/2024 03:11:57 :::CIS was forfeited as its condition was not satisfied. He should have made an order to that effect in the first .
instance. Only thereafter he could have issued a notice to these persons calling upon them either to pay the penalty or to show cause why the same should not be paid. Instead, the Magistrate proceeded to forfeit the bond as well as he ordered for the realization of the penalty which, however, he reduced to the advantage of these persons. That was not only an irregularity in procedure but the order itself became a nullity." (Emphasis supplied)
10. It was held in Ranananda Choudhury v. State of Orissa, 1978 Cri LJ 597 that the failure to produce the accused on the due date ipso-facto establishes the infringement of the condition of the bail bond. It was observed:-
"5. ... The above case arose out of reference made by the Sessions Judge to the effect that the learned Magistrate has acted irregularly. According to the Sessions Judge, a notice to the surety was a must calling upon him to show cause and after hearing him alone, the order of forfeiture could have been passed. In that reference, certain citations were referred to. But, ultimately, this Court held otherwise as quoted above. Subsequently, this case has been followed in the case of Jagannath Rout v. State of Orissa : (1975 Cri LJ 1084 (Orissa)), decided by Hon'ble Justice Patra as A.C.J. In that case, S. 514 was under consideration and it was held that the Magistrate can straightway issue a notice to the surety to show cause why the penalty mentioned in the bond should not be recovered from him and it is at that stage that the surety is entitled to put forth such plea as would be available to him.
xxx
8. This case refers to AIR 1929 Pat 658, AIR 1962 Pat 431: ((1962) 2 Cri LJ 627), (1974) 1 Cut WR 356, which have been relied on. The difference highlighted in the decisions of this Court has been fully reflected in the new provision S. 446 of the Code which runs thus: --::: Downloaded on - 01/08/2024 03:11:57 :::CIS
Where a bond under this Code is for appearance, or production of property, before a Court and it is .
proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited. the Court shall record the grounds of such proof and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.
9. The provision of this new Code brings the difference, namely, where a bond under this Code is for appearance, or where, in respect of any other bond. In the instant case, it is for causing the appearance of the accused by S. 446, sub-sec. (1). The learned Sessions Judge on the failure of the bailor-petitioners to cause the production of the accused, forfeited the bail bond and in the Misc. case has asked them to show cause as to why the penalty under the bond should not be realised.
Finally, hearing the explanation offered by the bailor petitioners in the Misc. case, he has directed that the amount be realised under the Distress Warrant as quoted above. It is very much in conformity with the decision of this Court as well as the provisions of S. 446 Cr. P.C. (New). There is no case of any prejudice to the bailors. The amount under the bond is only Rs. 200/- which they have been asked to pay. The amount also in the circumstances indicated by the learned Sessions Judge is not excessive, Accordingly, I would dismiss this revision and direct the petitioners to pay a fine of Rs. 200/- the amount as directed by the learned Sessions Judge." (Emphasis supplied)
11. A similar view was taken in Mudhu v. State of Karnataka, ILR 1981 Kar 1138, wherein it was held: -
"4. Section 446(1) of the Code lays down that if it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, that the bond ::: Downloaded on - 01/08/2024 03:11:57 :::CIS has been forfeited. This wording clearly shows that if a term of a bond is violated or a breach of a term .
of a bond is committed, the bond automatically stands forfeited. The Magistrate has to satisfy himself that it has been forfeited. No formal order of forfeiting the bond is called for. Therefore the first argument of Sri Kempanna that the Magistrate has issued a notice without forfeiting the bond, has no legs to stand.
5. Sri Kempanna nextly argued that the Magistrate ought to have given an opportunity to the petitioner to produce the accused after the petitioner appeared before the Court in response to the notice served on him and that he has failed to do so and, therefore levying of penalty, as has been made by both the Courts below, is not in accordance with law. Here again, I see no force in the argument because it is not provided in Section 446 of the Code that an opportunity should be afforded to the surety to produce the accused because forfeiture of the bond, as already held above, takes place as soon as the accused absents himself on a particular date of hearing. If the surety is able to produce the accused or produce the accused, the fact or circumstance may be taken into consideration by the Magistrate who has taken action against the surety in regard to levying of penalty on the surety. The Magistrate can even waive the levying of penalty." (Emphasis supplied)
12. This position was reiterated in Sadananda v.
State of Karnataka, 1985, Cri LJ 756 and it was held that Section 446 of Cr.P.C. does not provide for any notice to be issued to the surety before forfeiting the bonds executed by him. It was observed:-
"5. Section 446 of the Code does not provide for any notice to be issued to the surety before forfeiting the bond executed by him for failure of the terms of the bond executed by him. The wordings of Section 446(1) clearly show that if a term of a bond is violated or a breach of a term of a bond is committed, the bond automatically stands forfeited. All that is required is that the Magistrate has to satisfy himself that the bond has been ::: Downloaded on - 01/08/2024 03:11:57 :::CIS forfeited. Therefore, the issue of the notice to the surety before forfeiting the bond is not necessary .
(see Madhu @ Bella Kudtarkar v. State of Karnataka [ILR 1981 Kar 1138.] ).
6. However, it is clear from the last portion of sub- section (1) of Section 446 that once the bond has been forfeited, the Court shall call upon the surety, bound by such bond to pay the penalty thereof or to show cause why it should not be paid and at that stage the Court shall record the grounds of the proof of the forfeiture of the bond. In other words, at the stage of issuing the notice to the surety after forfeiting his bond, the Court shall record the grounds of the proof of the forfeiture of the bond and call upon the surety to pay the penalty or to show cause why it should not be paid. Obviously, the law enjoins upon the Court to record the grounds of forfeiture of the bond at the time of issuing the notice to the surety calling upon him to show cause why it should not be paid so as to enable the surety to show cause, if any, against payment of the bond amount by way of penalty. This is particularly to be so because no notice is contemplated under Section 446 to the surety before forfeiting his bond. This being the position in law, it seems to me that strict compliance of the provision relating to the issue of the notice to the surety after forfeiting the bond should be insisted upon because action to be taken against the surety in these proceedings is of a penal nature."
(Emphasis supplied)
13. Delhi High Court also took a similar view in Sham Sunder v. State (NCT of Delhi) 1990 Cri LJ 2370 at page 2372, wherein in it was held:
"8. There is no requirement of law that before forfeiting the surety bond any notice was liable to be given to the surety. In accordance with the terms of the surety bond, the same stood forfeited when the accused was declared a proclaimed offender and despite opportunities being given to the surety, the surety failed to produce the accused in court.
9. In Ghulam Mehdi v. State of Rajasthan, AIR 1960 SC 1185: (1960 Cri LJ 1527), it has been held that ::: Downloaded on - 01/08/2024 03:11:57 :::CIS notice to show cause is liable to be issued to the surety only to explain as to why he should not be .
made to pay the amount of the bond already forfeited as penalty. In Fatehchand Wadhumal v. Emperor, AIR 1940 Sind 136 (1940-41 Cri LJ 802), while interpreting the similar provisions of the old Criminal P.C. contained in S. 514, a Division Bench of the said High Court clearly held that a bond for appearance stands forfeited when accused does not appear and it does not require the court to issue notice to show cause why the bond should not be forfeited. A similar view has been laid down by a single Judge of Orissa High Court in Ramananda Choudhury v. State of Orissa, 1978 Cri LJ 597, I hold that it was not necessary for the magistrate to have passed any specific order in so many words that the bond stood forfeited before issuing notice to the surety under S. 446 of the Criminal P.C. to explain why the amount of bond which stood forfeited be not realised from him as fine. The surety bond of the petitioner stood forfeited as soon as a breach of the terms of the bond was committed on the failure of the accused to appear in court on the dates fixed by the court and failure of the surety to produce the accused and accused having been declared a proclaimed offender. The contents of the notice under S. 446 of the Criminal P.C. served on the surety clearly indicate that the bond of the surety stood forfeited and the same can be treated as a specific order of the Magistrate forfeiting the surety bond as no notice was required to be given to the surety before forfeiting the surety bond. So, I find no merit in their petition." (Emphasis supplied)
14. The Division Bench of Kerala High Court also held in Thundichi v. State of Kerala, 2009 SCC OnLine Ker 6527 that there is no requirement of issuing notice before the forfeiture of the bond. It was observed:-
"7. On perusal of the provision and Form No. 45 of the bond, it is clear that as soon as there is a default by the accused in not keeping himself present in the Court on the date of trial, the bond gets automatically forfeited. The law does not provide ::: Downloaded on - 01/08/2024 03:11:57 :::CIS any requirement of the satisfaction to be arrived at by the Court as to whether the absence is wilful or .
not. At this stage, there is also no requirement prescribed as to the Court to get satisfied itself by giving an opportunity, either to the accused or to the surety, thereof. In the case of bond for appearance, the court on its own observation is able to see whether the accused is present or not and if he is not present, it has to proceed under S. 446 to declare the bond automatically forfeited. In our view, no independent proof is necessary at this stage and it would be a meaningless formality to take evidence as to the obvious fact of the absence of the accused before the court on the day of the trial. The question whether the absence is wilful or not is immaterial at that stage, since the accused and the surety are together bound themselves to have the presence of the accused on that day and as such mere absence itself would entitle the bond to be forfeited. The latter part of Form 45 if looked into in this regard and especially the words "in case of his making default herein, I hereby bind myself to forfeit to Government the sum of rupees............" indicate that both the accused and the surety are aware of the fact that mere absence, for whatever reasons, wilful or not, by the very absence of the accused would result in only one situation, viz., forfeiture of the bond. As such, for this purpose, in our view, there need not be any opportunity given to the surety or any proof or evidence in respect of the explanation of the accused or the surety as to whether the absence was wilful or not need not be gone into.
8. Moreover, this so-called opportunity to the surety for the absence of the accused is provided at the later stage, i.e., under sub-s. (2) of S. 446 Cr. P.C. It is only at the stage of payment of penalty the law itself provides an opportunity and if sufficient cause is not shown, the penalty is bound to follow, apart from the forfeiture of the bond amount. Under sub-s. (3) of S. 446, it is also provided that the Court, after giving an opportunity to the surety, has the discretion to either levy or not any penalty and even remit any portion of the penalty and enforce the payment in part only.::: Downloaded on - 01/08/2024 03:11:57 :::CIS
9. On detailed reading of the entire provision, in our view, forfeiture of the bond on mere physical absence .
of the accused results in automatic forfeiture and there need not be any enquiry, including any opportunity to the surety be given at that stage or there is any requirement to consider any explanation in this regard, especially when that stage is provided later, as can be seen from sub-s. (2) and (3) of S. 446 Cr. P.C. In view of our aforesaid finding, we find that the learned Single Judge, while laying down the law in the cases of Usman v. State of Kerala and Geetha v. State of Kerala (supra), has travelled beyond the scope of the provision itself. Our observation is further fortified by an earlier pronouncement of this Court in the case of Kafoor Raja v. State of Kerala (1973 KLT 45) wherein it is held thus:
"In the case of a bond for appearance before a court, the cause for forfeiture thereof arises immediately on the failure on the part of the person bound by the bond to appear in court at the appointed time or on the appointed day, as no further proof regarding the breach of the conditions is called for. In the case of a bond for keeping the peace or for good behaviour, the position is different for obvious reasons; proof becomes necessary for the Magistrate to satisfy himself that there has been a breach of the conditions of the bond before an order forfeiting the bond could be passed. A fact could be said to be proved only when its existence is proved according to the provisions contained in the Evidence Act. It, therefore, appears to our mind that the satisfaction is based on proof contemplated by sub-s. (1) of S. 514 is not mere subjective satisfaction. The Magistrate cannot also allow the satisfaction required to be reached by him by a judicial process, to be substituted by prima facie satisfaction of someone else, like the Sub Inspector in the present case. Prudence dictates that to conform to the spirit of the provisions contained in the sub-section, the Magistrate should insist on better proof without resting ::: Downloaded on - 01/08/2024 03:11:57 :::CIS content with the report of the Police Officer or his evidence based on hearsay .
information, when it is a question of forfeiture of a bond. The examination of at least one person who had direct knowledge about the alleged involvement in the crime of the person whose bond is sought to be forfeited would tend to minimise the chances for abuse of process by interested persons. Of course, the standard of proof required in proceedings like this may not necessarily be equal to that required in a case for the conviction of an accused. In appropriate cases even affidavits by persons having direct knowledge about the incident r may serve the purpose, provided the persons swearing to such affidavits would be made available for cross-examination if the correctness of the averments is disputed by the persons against whom such affidavits are to be used. To dispense with such proof absolutely and place reliance solely on the police report or the evidence of the police officer, who claims to have no direct knowledge about the actual involvement of the accused, would lead to an awkward situation, and miscarriage of justice, particularly in a case which ultimately ends in discharge or acquittal. In the present case, the Magistrate had before him no legal evidence given by any person who claimed to have direct knowledge about any illegal act attributed to the persons bound by the bond, and in that view, the forfeiture of the bond cannot be upheld."
10. Considering all these aspects, we answer the reference by holding that the law laid down by the learned Single Judge in Usman v. State of Kerala and Geetha v. State of Kerala (supra) does not reflect the correct position. Hence they are overruled. We hold that there is absolutely no necessity of recording any satisfaction, reason and proof at the automatic stage of forfeiture of the bond, as the mere absence of the accused on the date fixed would result automatically in the forfeiture of the bond." (Emphasis supplied) ::: Downloaded on - 01/08/2024 03:11:57 :::CIS
15. This judgment was followed by Asokan v. State .
of Kerala, 2022 SCC OnLine Ker 9624 wherein it was held: -
"7. Where a bond is for the appearance of a person before a Court, a default in his appearance, when he is not exempted by the Court, will lead to automatic forfeiture. There is no necessity of recording any satisfaction, reason or proof at the stage of forfeiture of the bond, as the mere absence of the accused on the date fixed would result automatically in the forfeiture of the bond. The law on this point was settled by a Division Bench of by this Court in Thundichi v. State of Kerala [(2009) 4 KLT 67].
r8. Once the bond has been forfeited, the Court is competent to call upon the concerned sureties or the person bound by it to pay the penalty therein or to show cause why it should not be paid. The appellants failed to show sufficient cause for the non-payment of penalty. Therefore, this Court finds that the Court below is perfectly justified in holding that the appellants are liable to pay a penalty."
16. In Narata Ram versus State of H.P 1994 Cr.LJ 491, the petitioner Narata Ram had stood surety for the accused and executed surety bonds undertaking that he would cause the appearance of the accused on every date of hearing. The accused absconded. A notice was issued to the surety to produce the accused but he showed his inability. The bonds furnished by him were forfeited to the State. Proceedings under Section 446 of Cr. P.C. were initiated. The surety was permitted to produce the accused during the pendency of the proceedings under Section 446 of Cr.P.C. When he failed to do so, a penalty of ₹ 2000/- was imposed upon him. It was held:-
::: Downloaded on - 01/08/2024 03:11:57 :::CIS"15. The amount of penalty, if deposited, is ordered to be refunded in respect of each accused."
.
17. This Court held that the procedure adopted by the Court was not proper. Once the bond has been forfeited, it was not permissible to afford an opportunity to produce the accused and thereafter order the payment of the penalty. It was observed:-
"7. In the instant case, a show-cause notice was issued to the petitioner on 25th May 1992, pursuant to the order passed by the Sub-Divisional Judicial Magistrate. Close examination of the said order shows that none of the accused could be served for want of correct address nor either of them was otherwise present and, therefore, the prosecution was ordered to furnish the correct address of the accused, within seven days and get it served for their appearance on 1st July,1992 through non- bailable warrants. It further shows that notice to Ashok Kumar, Advocate, who identified the personal bonds of the accused, was also issued. Further, this order discloses that the petitioner showed his inability to produce either of the accused persons and this led to the order directing the forfeiture of the bonds by initiating proceedings under Section 446 of the Code of Criminal Procedure separately. The Court below further directed the issuance of show-cause notice to the petitioner as to why the amount under the bonds be not forfeited to the State of Himachal Pradesh. Lastly, this order also shows that the petitioner was afforded another opportunity to produce the accused persons on 1st July 1992. It was on the next date -- 1st July 1992 that the final order imposing a part penalty of Rs. 2000/- in case of each surety bond was passed. It would be pertinent to note that no fresh order forfeiting the bonds of the petitioner in respect of each surety bond was passed, nor any fresh show-cause notice was issued on 1st July 1992, pursuant to the petitioner having expressed his inability to produce either of the accused persons in the Court."::: Downloaded on - 01/08/2024 03:11:57 :::CIS
18. The Court formulated the question whether the .
surety bonds can be ordered to be forfeited along with an opportunity to the surety to produce the accused in the Court and answered it in negative. It was observed:-
"8. The question is whether a surety bond can be ordered to be forfeited simultaneously an opportunity having been afforded to the surety to produce the accused in the Court? The answer is in the negative."
19. It r was held that Section 446 of CPC contemplates two stages. The first stage is to satisfy the Court that the bond has been forfeited and the second stage is the realization of the amount. It was observed:-
"5. The fact that surety bond in the sum of Rs. 5000/- in respect of each one of the accused persons was executed by the petitioner and that he had undertaken to produce the accused persons before the Court and the fact of their failure to appear on any one of the dates, fixed for hearing is not disputed. Also, there is no controversy that the responsibility of surety arises from the execution of the surety bond by him and it is not contingent upon execution of a personal bond by the accused. Thus, the forfeiture of the personal bond of the accused is not a condition precedent to the forfeiture of the bonds executed by the sureties. [See: Ram Lal v. State of U.P., 1980 Cri LJ 826 :
((1979) 2 SCC 192: AIR 1979 SC 1498)]. A perusal of Section 446 of the Code of Criminal Procedure contemplates two stages. The first stage is for the Court to satisfy itself that the bond has been forfeited. The second stage relates to the realisation of the forfeited amount of the bond. For this purpose, it has to give him notice either to pay the penalty or to show cause why it should not be paid. It is imperative to note that if there are sufficient circumstances before the Court, on the basis of which it can accept or reject the cause shown, it need not take any evidence.::: Downloaded on - 01/08/2024 03:11:57 :::CIS
9. The Scheme of Section 446 of the Code of Criminal Procedure envisages two stages, as .
indicated above. No doubt, the accused did not appear nor they could be produced by the petitioner and non-bailable warrants had been issued for their appearance on 1st July, 1992, the Court below had also afforded an opportunity to the petitioner to produce the accused on 1st July, 1992. Had this last opportunity to produce the accused been afforded, the portion of the order dated 25th May 1992, directing the forfeiture of the amount under the bonds was legal and valid and for the reasons stated above, the Court could be deemed to have satisfied regarding the existence of reasonable grounds for directing the forfeiture of the bond.
Here, a composite order was passed. The petitioner could have produced the accused on 1st July 1992 and had he complied with the order to this effect, the circumstances would not have attracted the issuance of an order forfeiting the bonds. Thus, in such circumstances, the Court cannot be deemed to have satisfied itself as to the existence of grounds for directing the issuance of forfeiture of the bonds on 25th May 1992. In other words, the trial Court committed an illegality by exercising jurisdiction improperly, which had also not been noticed by the appellate Court."
20. It was further held that the notice was not proper as it was not in form 48 of Schedule (2) which is a violation of natural justice. It was observed:-
"10. Even otherwise the perusal of the show-cause notice issued to the petitioner shows that it is not in Form No. 48 of Schedule II of the Code of Criminal Procedure. The notice does not indicate whether the accused had failed to appear in terms of the surety bond, indicating that surety had bound himself for regular appearance of the accused in the Court in relation to the cases concerned and further that surety had bound himself in default thereof to forfeit the amount of the bond to the Government nor it discloses that the accused had failed to appear before the Court below and by reason thereof, petitioner had ::: Downloaded on - 01/08/2024 03:11:57 :::CIS forfeited the bond amount. The show cause notice is in a typed form. Even the contents thereof do not .
depict the requisites of the prescribed show cause notice in Form No. 48. A mechanical process had been adopted by the Court below in the issuance of this notice to the petitioner.
11. In this view of the matter too, the show-cause notice so issued, cannot be deemed to be a legal and valid show-cause notice for taking further action in proceedings under Section 446 of the Code of Criminal Procedure.
12. Learned counsel has also submitted that no opportunity of being heard was afforded to the petitioner to the show-cause, notice, I have already observed that no legal and valid notice was served.
However, in the oridinary course, the rule of natural justice requires that before any adverse order is passed, the affected party should be given an opportunity of being heard."
21. It was held in the course of discussion that a notice to the surety cannot be issued unless the order of forfeiture is passed. It was observed:
"6. It is also settled law that a notice to the surety cannot be issued, unless the order of forfeiture is passed. Thereafter, the Court has to consider the grounds made out by the surety in support of his case and after considering the case, on merits, if the Court is dissatisfied with the reasons shown, an order has to be made for the realisation of the penalty. I am supported in my view by the observations made in the case of Dhanvir v. State, 1975 Cri LJ 1347 (Him Pra).
22. It is apparent from the judgment of this Court in Narata Ram that it was not concerned with the question whether show cause notice is required to be issued to the surety before the forfeiture of the bond. Even though in the course of discussion, the Court held that show cause notice cannot be issued before the forfeiture of the bond.
::: Downloaded on - 01/08/2024 03:11:57 :::CIS23. Hon'ble Mr. Justice R. V. Raveendaran J .
explained in his article Precedents--Boon Or Bane?(2015) 8 SCC J-1 that ratio decidendi of a decision constitutes binding precedent and not every observation contained in it. He wrote:
"The well-recognised definition of precedent is "an adjudged case or decision of a court, considered as furnishing an example or authority for an identical or similar case afterwards arising or a similar question of law". Salmond defines a precedent as a judicial decision which contains in itself a legal authoritative element which is described as ratio decidendi. [Salmond's Jurisprudence (10th Edn.) 191.] The rule deducible from the application of law to the facts and circumstances of a case constitutes the ratio decidendi of the case. [Regional Manager v. Pawan Kumar Dubey, (1976) 3 SCC 334.] What the Judges expressly decided or what they must be considered to have decided by necessary implication by reference to the facts stated by the Judges themselves are what constitute precedents.
[Gopal Upadhyaya v. Union of India, 1986 Supp SCC
501.] Every decision of a court should ideally comprise three components: (a) findings of material facts, direct and inferential; (b) statements of the principles of law applicable to the legal issues or problems disclosed by the facts; and (c) judgment (the final decision) containing the conclusions and directions of the court, based on the combined effect of (a) and (b) above. [State of Orissa v. Mohd. Illiyas, (2006) 1 SCC 275.] The concluding part of a decision, that is the 'concrete decision' containing the conclusions and directions of the court, should not be confused with the ratio decidendi (reasons for the decision). While the conclusions and directions in a decision, that is the concrete decision, alone bind the parties to the litigation, the abstract ratio decidendi of the decision as ascertained on a consideration of the judgment in relation to the subject matter of the decision has the force of law and is binding on all subordinate ::: Downloaded on - 01/08/2024 03:11:57 :::CIS courts and tribunals. [Halsbury's Laws of England, 4th Edn., Vol. 26, Para 573.] In other words, a .
decision is binding as a precedent, not because of its final conclusions or directions, but because of its ratio. Ratio decidendi refers to "the principle of law on which a decision is based" or the reason for the decision or the point in a case which determines what the decision should be. The legal principle which constitutes the "ratio" of a decision is the "precedent" for other cases.
PART III Principles to be kept in view by those who apply Precedents The basic principles to be kept in view by the courts/authorities who are required to follow precedents are:
(i) The "ratio" of the decision is the precedent. Neither factual findings nor directions issued by the Supreme Court under Article 142 are the precedents.
(ii) Obiter dicta in a decision is not a precedent.
(iii) Non-speaking orders are not
precedents.
(iv) Precedents are not to be read as statutory provisions.
(v) Even small differences in facts may lead to a different conclusion.
(vi) Decisions rendered per incuriam are not to be followed.
(vii) Some precedents cease to be binding.
(viii) Divergent precedents should be dealt with in accordance with the settled principles relating to precedents.
Unfortunately, the above principles are repeatedly ignored, many a time even by the High Courts, thereby defeating the very object and efficacy of precedents.
(i) The "ratio" of the decision is the precedent The first principle of precedents is that only a decision relating to or involving a question of law or interpretation of a legal principle can be said to have a ratio and used as a precedent. A decision or judgment rendered purely on the basis of the fact situation of a case, without involving the application of any legal principle or provision of ::: Downloaded on - 01/08/2024 03:11:57 :::CIS law, cannot be considered as a precedent for deciding any other case involving a different set of .
facts. [Prakash Chandra Pathak v. State of U.P., AIR 1960 SC 195; PGI of ME & Research v. Vinod Krishan Sharma, (2001) 2 SCC 59 and U.P. Brassware Corpn. Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479.]
(iv) Decisions of a court are not to be read as statutory provisions The next principle of precedents is that the contents of a decision of a court are not to be read as if they are provisions of a statute (or as Euclid's theorems, which are known for their precision). Judges interpret statutes, but their judgments are not to be construed or interpreted as statutes. A statutory provision is not made with reference to any particular case but is a pure principle in the abstract. The words, phrases and provisions of a statute are interpreted, if necessary, by embarking on discussions to explain the meaning. On the other hand, the contents of a judgment are built around the facts of that case and the legal position is also stated with reference to the factual background of the case."
24. It was held in Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court, (1990) 3 SCC 682: 1991 SCC (L&S) 71 that a decision is an authority for what it decides and only the ratio decidendi is binding. It was observed:
44. An analysis of judicial precedent, ratio decidendi and the ambit of earlier and later decisions is to be found in the House of Lords' decision in F.A. & A.B. Ltd. v. Lupton (Inspector of Taxes) [1972 AC 634 : (1971) 3 All ER 948], Lord Simon concerned with the decisions in Griffiths v. J.P. Harrison (Watford) Ltd. [1963 AC 1 :
(1962) 1 All ER 909] and Finsbury Securities Ltd. v. Inland Revenue Commissioner [(1966) 1 WLR 1402 : (1966) 3 All ER 105] with their interrelationship and with the question whether Lupton's case [1972 AC 634 : (1971) 3 All ER 948] fell with-in the precedent established by the one or the other case, said: (AC p. 658) ::: Downloaded on - 01/08/2024 03:11:57 :::CIS "...what constitutes binding precedent is the ratio decidendi of a case, and this is .
almost always to be ascertained by an analysis of the material facts of the case-- that is, generally, those facts which the tribunal whose decision is in question itself holds, expressly or implicitly, to be material."
45. It has also been analysed: (AC pp. 658-59) "A judicial decision will often be reached by a process of reasoning which can be reduced into a sort of complex syllogism, with the major premise consisting of a pre-existing rule of law (either statutory or judge-made) and with the minor premise consisting of the r material facts of the case under immediate consideration. The conclusion is the decision of the case, which may or may not establish new law -- in the vast majority of cases it will be merely the application of existing law to the facts judicially ascertained. Where the decision does constitute new law, this may or may not be expressly stated as a proposition of law: frequently the new law will appear only from subsequent comparison of, on the one hand, the material facts inherent in the major premise with, on the other, the material facts which constitute the minor premise. As a result of this comparison, it will often be apparent that a rule has been extended by an analogy expressed or implied."
46. To consider the ratio decidendi of a case we have, therefore, to ascertain the principle on which the case was decided. Sir George Jessel in Osborne v. Rowlatt [(1880) 13 Ch D 774], remarked that (Ch D, p. 785) 'the only thing in a Judge's decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided'.
47. The ratio decidendi of a decision may be narrowed or widened by the judges before whom it is cited as a precedent. In the process, the ratio decidendi which the judges who decided the case would themselves have chosen may be even different from the one which has been approved by ::: Downloaded on - 01/08/2024 03:11:57 :::CIS subsequent judges. This is because judges, while deciding a case will give their own reasons but may .
not distinguish their remarks in a rigid way between what they thought to be the ratio decidendi and what were their obiter dicta, that is, things said in passing having no binding force, though of some persuasive power. It is said that "a judicial decision is the abstraction of the principle from the facts and arguments of the case". "A subsequent judge may extend it to a broader principle of wider application or narrow it down for a narrower application". The submissions of Mr Venugopal that for the purpose of ratio decidendi, the question is not whether a subsequent bench of this Court thinks that it was necessary or unnecessary for the Constitution Bench, or the earlier bench to have dealt with the issue, but whether the Constitution Bench itself thought it necessary to interpret Section 2(oo) for arriving at the final decision has to be held to be untenable in this wide and rigid form."
25. Similarly, it was held in Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697: 2003 SCC OnLine SC 856 that a judgment cannot be read like a statute and only the ratio decidendi is binding. It was observed:
Interpretation of a judgment
139. A judgment, it is trite, is not to be read as a statute. The ratio decidendi of a judgment is its reasoning which can be deciphered only upon reading the same in its entirety. The ratio decidendi of a case or the principles and reasons on which it is based is distinct from the relief finally granted or the manner adopted for its disposal.
(See Executive Engineer, Dhenkanal Minor Irrigation Division v. N.C. Budharaj [(2001) 2 SCC 721].)
140. In Padma Sundara Rao v. State of T.N. [(2002) 3 SCC 533] it is stated: (SCC p. 540, paragraph 9) "There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris ::: Downloaded on - 01/08/2024 03:11:57 :::CIS in Herrington v. British Railways Board [(1972) 2 WLR 537: 1972 AC 877 : (1972) .
1 All ER 749 (HL)] (Sub nom British Railways Board v. Herrington). Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases."
(See also Haryana Financial Corpn. v. Jagdamba Oil Mills [(2002) 3 SCC 496] .)
141. In General Electric Co. v. Renusagar Power Co. [(1987) 4 SCC 137] it was held : (SCC p. 157, paragraph 20) "As often enough pointed out by us, words and expressions used in a judgment are not to be construed in the same manner as r statutes or as words and expressions defined in statutes. We do not have any doubt that when the words 'adjudication of the merits of the controversy in the suit' were used by this Court in State of U.P. v. Janki Saran Kailash Chandra [(1973) 2 SCC 96: AIR 1973 SC 2071 : (1974) 1 SCR 31] the words were not used to take in every adjudication which brought to an end the proceeding before the court in whatever manner but were meant to cover only such adjudication as touched upon the real dispute between the parties which gave rise to the action. Objections to adjudication of the disputes between the parties, on whatever ground, are in truth not aids to the progress of the suit but hurdles to such progress. Adjudication of such objections cannot be termed as adjudication of the merits of the controversy in the suit. As we said earlier, a broad view has to be taken of the principles involved and narrow and technical interpretation which tends to defeat the object of the legislation must be avoided."
142 In Rajeswar Prasad Misra v. State of W.B. [AIR 1965 SC 1887 : (1965) 2 Cri LJ 817] it was held:
"No doubt, the law declared by this Court binds courts in India but it should always be remembered that this Court does not enact."::: Downloaded on - 01/08/2024 03:11:57 :::CIS
(See also Amar Nath Om Prakash v. State of Punjab [(1985) 1 SCC 345: 1985 SCC (Tax) 92] .
and Hameed Joharan v. Abdul Salam [(2001) 7 SCC
143. It will not, therefore, be correct to contend, as has been contended by Mr Nariman, that answers to the questions would be the ratio to a judgment.
The answers to the questions are merely conclusions. They have to be interpreted, in a case of doubt or dispute with the reasons assigned in support thereof in the body of the judgment, wherefor, it would be essential to read the other paragraphs of the judgment also. It is also permissible for this purpose (albeit only in certain cases and if there exist strong and cogent reasons) to look to the pleadings of the parties.
144. In Keshav Chandra Joshi v. Union of India [1992 Supp (1) SCC 272: 1993 SCC (L&S) 694 : (1993) 24 ATC 545] this Court when faced with difficulties where specific guidelines had been laid down for the determination of seniority in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra [(1990) 2 SCC 715: 1990 SCC (L&S) 339 : (1990) 13 ATC 348] held that the conclusions have to be read along with the discussions and the reasons given in the body of the judgment.
145. It is further trite that a decision is an authority for what it decides and not what can be logically deduced therefrom. (See Union of India v. Chajju Ram [(2003) 5 SCC 568].)
26. Similar view was taken in Arasmeta Captive Power Co. (P) Ltd. v. Lafarge India (P) Ltd., (2013) 15 SCC 414:
(2014) 5 SCC (Civ) 302: 2013 SCC OnLine SC 1094, wherein it was observed:
"31. At this juncture, we think it condign to refer to certain authorities which lay down the principle for understanding the ratio decidendi of a judgment. Such a deliberation, we are disposed to think, is necessary as we notice that contentions are raised that certain observations in some paragraphs in SBP [SBP & Co. v. Patel Engg. Ltd., (2005) 8 SCC 618] have been relied upon to build the edifice that latter judgments have not referred to them.::: Downloaded on - 01/08/2024 03:11:57 :::CIS
32. In Ambica Quarry Works v. State of Gujarat [(1987) 1 SCC 213] it has been stated (SCC p.
.
221, para 18) that the ratio of any decision must be understood in the background of the facts of that case. Relying on Quinn v. Leathem [1901 AC 495 (HL)] it has been held that the case is only an authority for what it actually decides, and not what logically follows from it.
33. Lord Halsbury in Quinn [1901 AC 495 (HL)] has ruled thus: (AC p. 506) "... there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or r assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."
(emphasis supplied)
34. In Krishena Kumar v. Union of India [(1990) 4 SCC 207: 1991 SCC (L&S) 112 : (1990) 14 ATC 846] the Constitution Bench, while dealing with the concept of ratio decidendi, has referred to Caledonian Railway Co. v. Walker's Trustees [(1882) LR 7 AC 259 :
(1881-85) All ER Rep 592: 46 LT 826 (HL)] and Quinn [1901 AC 495 (HL)] and the observations made by Sir Frederick Pollock and thereafter proceeded to state as follows : (Krishena Kumar case [(1990) 4 SCC 207: 1991 SCC (L&S) 112 : (1990) 14 ATC 846], SCC pp. 226-27, para 20) "20. ... The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio ::: Downloaded on - 01/08/2024 03:11:57 :::CIS decidendi has to be ascertained by an analysis of the facts of the case and the process of .
reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or Judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th Edn., Vol. 26, para 573):
'The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to r the subject matter of the decision, which alone has the force of law and which when it is clear ... it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to be bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi.'"
(emphasis supplied)
35. In State of Orissa v. Mohd. Illiyas [(2006) 1 SCC 275: 2006 SCC (L&S) 122] it has been stated thus :
(SCC p. 282, para 12) "12. ... According to the well-settled theory of precedents, every decision contains three basic postulates : (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment."::: Downloaded on - 01/08/2024 03:11:57 :::CIS
36. In Islamic Academy of Education v. State of Karnataka [(2003) 6 SCC 697] the Court has made .
the following observations : (SCC p. 719, para 2) "2. ... The ratio decidendi of a judgment has to be found out only by reading the entire judgment. In fact, the ratio of the judgment is what is set out in the judgment itself. The answer to the question would necessarily have to be read in the context of what is set out in the judgment and not in isolation. In case of any doubt, as regards any observations, reasons and principles, the other part of the judgment has to be looked into. By reading a line here and there from the judgment, one cannot find out the entire ratio decidendi of the r judgment."
(emphasis supplied)
37. The said authorities have been relied upon in Natural Resources Allocation, In re, Special Reference No. 1 of 2012 [(2012) 10 SCC 1], SCC p. 68, para 73.
38. At this stage, we may also profitably refer to another principle which is of assistance to understand and appreciate the ratio decidendi of a judgment. The judgments rendered by a court are not to be read as statutes. In Union of India v. Amrit Lal Manchanda [(2004) 3 SCC 75: 2004 SCC (Cri) 662] it has been stated that : (SCC p. 83, para 15) "15. ... Observations of courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. [The] observations must be read in the context in which they appear to have been stated. ... To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes."
39. In Som Mittal v. State of Karnataka [(2008) 3 SCC 574 : (2008) 2 SCC (Cri) 1 : (2008) 1 SCC (L&S) 910] it has been observed that : (SCC p. 581, para 9) ::: Downloaded on - 01/08/2024 03:11:57 :::CIS "9. ... Judgments are not to be construed as statutes. Nor words or phrases in judgments .
are to be interpreted like provisions of a statute. Some words used in a judgment should be read and understood contextually and are not intended to be taken literally.
Many a time a Judge uses a phrase or expression with the intention of emphasising a point or accentuating a principle or even by way of a flourish of writing style. Ratio decidendi of a judgment is not to be discerned from a stray word or phrase read in isolation."
27. It was laid down by Gujarat High Court in Mohmad Ayub @ Babbu Sagirbhai Shaikh Versus Commissioner of Police, Ahmedabad 1994 (1) GLR 589 that a decision is only an authority for what it decides. The essence of a decision is its ratio and not every observation found therein. It was observed:
"[3] In State of Orissa v. Sudhansu Sekhar Misra & Ors., AIR1968 SC 647, five learned Judges of the Apex Court spoke as follows:
"... A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and note every observation found therein nor what logically follows from the various observations made in it. On this topic, this is what Earl of Halsbury LC said in Quinn v. Leathern, 1901 AC 495: 'Now before discussing the case of Alien y. flood, 1898 AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the ::: Downloaded on - 01/08/2024 03:11:57 :::CIS particular facts of the case in which such expressions are to be found. The other is that .
a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.' It is not a profitable task to extract a sentence here and there from a judgment and to build upon it."
In H. H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadw & Ors. v. Union of India, AIR 1971 SC 530, a case, decided by eleven Judges, the Apex Court took note of the fact that the Court was not called upon to decide a particular question as of law, and observed as follows:
".........It is difficult to regard a word a clause or a sentence occurring in a judgment of this Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment."
In Municipal Committee, Amritsar v. Hazara Singh, AIR 1975 SC 1087, three Judges of the Apex Court opined that distortion of the passage in a judgment could not pass muster, and approved the following observations of the High Court of Kerala in State of Kerala v. Parameswaran Filial Vasudevan Nair, 1975 FAC 8 : (1975 Cri. LJ 97) :
"Judicial propriety, dignity and decorum demand that being the highest judicial tribunal in the country even obiter dictum of the Supreme Court should be accepted as binding. Declaration of law by that Court even if it be only by the way has to be respected. But all that does not mean that every statement contained in a judgment of that Court would be attracted by Art. 141. Statements on matters other than law have no binding force. Several decisions of the Supreme Court are on facts and the Court itself has pointed out in Gurcharan Singh v. State of Punjab, (1972 FAC 549) and Prakesh Chandra Palhak v. State of Uttar Pradesh (AIR ::: Downloaded on - 01/08/2024 03:11:57 :::CIS 1960 SC 195) that as on facts no two cases could be similar, its own decisions which .
were essentially on questions of fact could not be relied upon as precedents for the decision of other eases."
In Additional District Magistrate, Jabalpur v.
Shivakant Shukla, AIR 1976 SC 1207, a case decided by five Judges, it was cautioned as follows :
"......Moreover, it must be remembered that when we are considering the observations of a high judicial authority like this Court, the greatest possible care must be taken to relate the observations of a judge to the precise issues before him and to confine such observations, even though expressed in r broad terms, in the general compass of the question before him unless he makes it clear that he intended his remarks to have a wider ambit...."
[4] Even observations on law, though not part of the ratio decidendi of law in the pronouncement, classified as obiter dicta emanating from the Apex Court, are binding on this Court and this Court cannot ignore them. An obiter dictum is an observation by the Court on a legal question, not factual, suggested by a case before it, but not arising in such a manner as to require a decision. In the Commissioner of Income-Tax, Hyderabad, Deccan v. M/s. Vazir Sultan & Sons, AIR 1959 SC 814, it was stated :
" ...... The obiter dicta of this Court, however, are entitled to considerable weight and we on our part fully endorse the Same. ... "
In Income-Tax Officer, Tuticorin y. T S. Devinatha Nadar, AIR 1968 SC 623, even an opinion of the Apex Court was held to merit the highest respect. [5] In Municipal Committee, Amritsar v. Hazara Singh, AIR 1975 SC 1087, as already noted, the Apex Court approved the view of the Kerala High Court that "judicial propriety, dignity and decorum demand that being the highest judicial tribunal in the country, even obiter dictum of the Supreme Court should be accepted as binding Declaration of law by that Court even if it be only, by the way, has to be respected".
::: Downloaded on - 01/08/2024 03:11:57 :::CIS[6] Either way, as ratio decidendi or obiter dictum, it has got to be a proposition of law. But, if what has .
been expressed is only a discussion of factual aspects of the case and a pronouncement on the same, then, that cannot be cited as a precedent to govern decisions in other cases. In Prakash Chandra Pathak v. State of Uttar Pradesh, AIR 1960 SC 195, this is how the proposition was set down :
" ... It is enough to say that decisions even of the highest Court on questions which are essentially questions of fact, cannot be cited as precedents governing the decision of other cases which must rest in the ultimate analysis upon their particular facts. ..."
As to what should be the right approach to the decisions of the Apex Court, the said Court, as already noticed, in Municipal Committee, Amritsar v. Hazara Singh, AIR 1975 SC 1087, approved as correct the view of the High Court of Kerala that statements on matters other than law have no binding force; several decisions of the Supreme Court are on facts; as on facts no two cases could be similar, its own decisions which were essentially on questions of fact cannot be relied upon as precedents for the decision of other cases. It has always been accepted by Courts as a well-settled theory that there are three ingredients in a decision as follows :
(i) Findings of material facts, direct and inferential;
(ii) Statement of the principles of law applicable to the legal problems disclosed by such facts;
AND
(iii) Judgment based on (i) and (ii).
In Qualcast (Wolverhampton) Ltd. v. Haynes, 1959 Appeal Cases 743, a solution on facts was not treated as a proposition of law. The ratio decidendi may be defined as a statement of law applied to the legal problems raised by the facts as found, upon which the decision is based.
xxxxxxxxxxx [29] Lord Halsbury (Halsbury's Laws of England, Fourth Edition, Vol. 26, para 573) describes the Ratio decidendi in the following manner:
::: Downloaded on - 01/08/2024 03:11:57 :::CIS"The use of precedent is an indispensable foundation upon which to decide what is the .
law and its application to individual cases;
provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for the orderly development of legal rules. The enunciation of the reason of principle upon which a question before a Court has been decided is alone binding as a precedent. This underlying principle is called the ratio decidendi, namely the general reasons given for the decision or the general grounds upon which it is based, detached or abstracted from the specific peculiarities of the r particular case which gives rise to the decision. What constitutes binding precedent is the ratio decidendi, and this is almost always to be ascertained by an analysis of the material facts of the case, for a judicial decision is often reached by a process of reasoning involving a major premise consisting of a pre-existing rule of law, either statutory or Judge made, and a minor premise consisting of the material facts of the case under immediate consideration.
The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, as ascertained on consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding; but, if it is not clear, it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to be bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. // more reasons than one are given by the tribunal for its judgment, all are taken as forming the ratio decidendi."
[30] Salmond ("Salmond on Jurisprudence"
Twelfth Edition, page 174) after having considered the extent to which Courts are bound by previous decisions proceeds to examine what constitutes the decision in a case and what it is that is actually binding on later Courts.::: Downloaded on - 01/08/2024 03:11:57 :::CIS
Salmond puts it this wise:
"First, however, we must distinguish what a .
case decides generally and as against all the world from what it decides between the parties themselves. What it decides generally is the ratio decidendi or rule of law for which it is authority: what it decides between the parties includes far more than just this."
(Underlining provided) [31] Salmond talks of various methods of determining the ratio which have been advanced thus far and takes into consideration the "Reversal Test" of Professor Wambaugh suggesting that we should take the proposition of law put forward by the Judge, reverse or negate it, and then see if its reversal would have altered the actual decision.
Salmond takes note of another test suggested by Dr Goodhart. According to it, the ratio is to be determined by ascertaining the facts treated as material by the Judge together with his decision on those facts.
[32] Rupert Cross (Precedent in English Law, Third Edition) deals with both the above-said tests, namely, the Wambaugh Test and Dr. Goodhart Test). On page 53 of his classical work, he deals with Wambaugh's Test rather elaborately and points out that Wambaugh had stated the test in the following words :
"First frame carefully the supposed proposition of law. Let him then insert in the proposition a word reversing its meaning. Let him then inquire "whether, if the Court had conceived this new proposition to be good, and had it in mind, the decision could have been the same If the answer be affirmative, then, however excellent the original proposition may be, the case is not a precedent for the proposition, but if the answer be negative the case is a precedent for the original proposition and possibly for other propositions also, in short, when a case turns only on one point the proposition or doctrine of the case, the reason for the decision, the ratio decidendi, must be a general rule without which the case must have been decided otherwise."::: Downloaded on - 01/08/2024 03:11:57 :::CIS
[33] Rupert Cross also makes a detailed reference to Dr. Goodhart's method of determining the ratio .
decidendi and says that, according to Dr. Goodhart, the ratio decidendi of a case is determined by ascertaining the facts treated as material by the Judge and it is the principle to be ascertained from the Judge's decision on the basis of those facts. The learned author points out that this method of determining the ratio decidendi has the great merit of paying more regard to the facts as seen by the Judge than is provided by the Wambaugh Test.
[34] Rupert Cross before dealing with Dr. Goodhart's method of determining the ratio decidendi takes note of the rule enunciated by Lord Halsbury in Quinn v. Leathern, 1901 AC 495 at page
506. In this decision, Lord Halsbury opines thus :
"A case is the only authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to flow logically from it."
[35] Turning to the case law in this country the reference firstly shall have to be made to the Supreme Court decision in Dalbir Singh & Ors. v. State of Punjab, AIR 1979 SC 1384, which says that the only thing in a Judge's decision, binding a party is the principle upon which the case is decided and for this reason, it is important to analyse a decision and isolate from it the ratio decidendi. A Full Bench decision in State of Bombay v. Chhaganlal Gangaram Lavar, AIR 1955 Bombay 1 (FB) being an F.B. decision says that, so long as the Supreme Court does not take a different view from the view taken by the Privy Council, the decisions of the Privy Council are still binding upon High Courts. Chief Justice Chagia while speaking for the Full Bench points out that, What is binding is not merely the point decided but an opinion expressed by the Privy Council which opinion is expressed after careful consideration of all the arguments and which is deliberately and advisedly given. In the same context a Full Bench decision rendered by Delhi High Court in Flying Officer S. Sundarajan v. Union of India & Ors., AIR 1970 Delhi 29, merits consideration as it gives a clear idea in respect of ratio by providing a negative formula and proceeds to say:
::: Downloaded on - 01/08/2024 03:11:57 :::CIS"Under Art. 141 of the Constitution, the law declared by the Supreme Court is binding on .
all the Courts and therefore, even the principle enunciated by the Supreme Court including its obiter dicta when they are stated in clear terms, have a binding force.
But when a question is neither raised nor discussed in a judgment rendered by the Supreme Court, no principle of a binding nature can be deduced from it by implication."
This when presented in a positive manner instead of negative, would show that when a question is raised, discussed and decided in a judgment rendered by the Supreme Court, the same shall be a principle of a binding nature. Turning to a rather recent Supreme Court decision in State of U. P. & Anr. v. Mis Synthetics & Chemicals Ltd. & Anr., JT 1991 (3) SC 268, which takes into consideration, the Supreme Court decisions in Municipal Corporation of Delhi v. Gurnam Kaur, (1989 (1) SCC 101) and in Shama Rao v. State of Pondicherry, (AIR 1967 SC 1680) lays down that, any declaration or conclusion, arrived without application of mind or preceded without any reason cannot be deemed to be the declaration of Law or authority of a general nature binding as a precedent. This negative test when put in a positive manner, once again would go to show that a declaration or conclusion arrived at after the application of mind and preceding on cogent reasoning, cannot be ignored. Speaking regarding precedents, this pronouncement says that the conclusion which is not preceded by reasoning or rationale cannot be deemed to be a law declared to have a binding effect as contemplated under Art. 141 of the Constitution of India. Once again putting this in positive language it would mean that the conclusions preceded by reasoning and rationale, shall be deemed to be the law declared, having a binding effect as contemplated under Art. 141 of the Constitution of India.
[36] The Supreme Court has made it clear that even if a question is answered by necessary implication by the Supreme Court, then also the answer cannot be ignored by referring to the decisions appealed ::: Downloaded on - 01/08/2024 03:11:57 :::CIS against and holding that the real question that must be considered to have been answered was .
something else, and that, what the Judges expressly decided or what they must be considered to have decided by necessary implication would also constitute precedents. This view of the Supreme Court has been expressed unequivocally in Gopal Upadhyaya & Ors. v. Union of India & Ors., AIR 1987 SC 413. The concluding portion of the pronouncement may be extracted thus :
"When a question is answered expressly or by necessary implication by the Supreme Court the answer cannot be ignored by referring to the decision appealed against and holding that the real question that must r be considered to have been answered was something else What the Judges expressly decided or what they must be considered to have decided by necessary implication by reference to the facts stated by the Judges themselves are what constitute precedents."
28. Similarly, the Hon'ble Supreme Court also held in State of Gujarat & Ors versus Utility Users Welfare Association & Ors 2018 (6) SCC 21 that the Court has to apply "The Inversion Test" to determine the ratio decidendi of a case. It was observed:
"113. In order to determine this aspect, one of the well-established tests is "The Inversion Test"
propounded inter alia by Eugene Wambaugh, a Professor at Harvard Law School, who published a classic textbook called "The Study of Cases"56 in the year 1892. This 56Eugene Wambaugh, The Study of Cases (Boston: Little, Brown, & Co., 1892) textbook propounded inter alia what is known as the "Wambaugh Test" or "The Inversion Test" as the means of judicial interpretation. "The Inversion Test" is used to identify the ratio decidendi in any judgment. The central idea, in the words of Professor Wambaugh, is as under:
"In order to make the test, let him first frame carefully the supposed proposition of law. Let him then insert in the proposition a ::: Downloaded on - 01/08/2024 03:11:57 :::CIS word reversing its meaning. Let him then inquire whether, if the court had conceived .
this new proposition to be good, and had had it in mind, the decision could have been the same. If the answer be affirmative, then, however excellent the original proposition may be, the case is not a precedent for that proposition, but if the answer be negative the case is a precedent for the original proposition and possibly for other propositions also. (Eugene Wambaugh, The Study of Cases (Boston: Little, Brown, & Co., 1892) at pg. 17)"
114. In order to test whether a particular proposition of law is to be treated as the ratio rdecidendi of the case, the proposition is to be inversed, i.e., removed from the text of the judgment as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case. This test has been followed to imply that the ratio decidendi is what is absolutely necessary for the decision of the case. "In order that an opinion may have the weight of a precedent", according to John Chipman Grey (Another distinguished jurist who served as a Professor of Law at The Harvard Law School), "it must be an opinion, the formation of which, is necessary for the decision of a particular case."
29. In the present case, if the proposition of law that a show cause notice is required to be issued to the surety before forfeiture of his surety bonds, in the absence of which, the order is bad and is negated, it will not make any difference to the judgment in Narata Ram (supra) because the question of issuing show cause notice before the forfeiture never arose before the Court in Narata Ram (supra); hence, it is not the ratio decidendi.
::: Downloaded on - 01/08/2024 03:11:57 :::CIS30. Jammu & Kashmir and Ladakh High Court held .
in Makhan Lal (supra) that Narata Ram (supra) had laid down that a notice is required to be issued before recording the satisfaction of the breach. As per my humble understanding, no such proposition was laid down in Narata Ram (supra).
31. The judgment of Dhameswar Sahoo (supra) is in ignorance of the earlier judgment of the same High Court in Jagarnath (supra), and Rama Nand Chaudhary (supra).
Hon'ble Supreme Court held in M.P. Rural Road Development Authority v. L.G. Chaudhary Engineers & Contractors, (2012) 3 SCC 495, that when a judgment is delivered per incuriam it loses its binding force and cannot be accepted as a precedent. It was observed:-
"28. The principle of per incuriam has been very succinctly formulated by the Court of Appeal in Young v. Bristol Aeroplane Co. Ltd. [1944 KB 718 (CA)] Lord Greene, Master of Rolls formulated the principles on the basis of which a decision can be said to have been rendered "per incuriam". The principles are: (KB p. 729) "... Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present in its mind. Cases ::: Downloaded on - 01/08/2024 03:11:57 :::CIS of this description are examples of decisions given per incuriam."
.
29. The decision in Young [1944 KB 718 (CA)] was subsequently approved by the House of Lords in Young v. Bristol Aeroplane Co. Ltd. [1946 AC 163 (HL)], AC at p. 169 of the Report. Lord Viscount Simon in the House of Lords expressed His Lordship's agreement with the views expressed by Lord Greene, the Master of Rolls in the Court of Appeal on the principle of per incuriam (see the speech of Lord Viscount Simon in Bristol Aeroplane Co. Ltd. case [1946 AC 163 (HL)], AC at p. 169 of the Report).
30. Those principles have been followed by the Constitution Bench of this Court in Bengal Immunity Co. Ltd. v. State of Bihar [AIR 1955 SC 661:
(1955) 2 SCR 603] (see the discussion in SCR at pp.
622 and 623 of the Report).
31. The same principle has been reiterated by Lord Evershed, Master of Rolls, in Morelle Ld. v. Wakeling [(1955) 2 QB 379 (CA)], QB at p. 406. The principle has been stated as follows:
"... As a general rule, the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned; so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong."
32. In State of U.P. v. Synthetics and Chemicals Ltd. [(1991) 4 SCC 139] this Court held (SCC p. 162, para 40) that the doctrine of "per incuriam" in practice means "per ignoratium" and noted that the English courts have developed this principle in relaxation of the rule of stare decisis and referred to the decision in Bristol Aeroplane Co. Ltd. [1946 AC 163 (HL)] The learned Judges also made it clear that the same principle has been approved and adopted by this Court while interpreting Article 141 of the Constitution (see Synthetics and Chemicals Ltd. case [(1991) 4 SCC 139], SCC para 41).
33. In MCD v. Gurnam Kaur [(1989) 1 SCC 101] a three-judge Bench of this Court explained this ::: Downloaded on - 01/08/2024 03:11:57 :::CIS principle of per incuriam very elaborately in SCC para 11 at p. 110 of the Report and in explaining the .
principle of per incuriam the learned Judges held:
"11. ... A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute."
34. In para 12 the learned Judges observed as follows: (Gurnam Kaur case [(1989) 1 SCC 101], SCC p. 111) "12. ... One of the chief reasons for the doctrine of precedent is that a matter that has once been fully argued and decided should not be allowed to be reopened. The weight accorded to dicta varies with the type r of dictum. Mere casual expressions carry no weight at all. Not every passing expression of a Judge, however eminent, can be treated as an ex-cathedra statement, having the weight of authority."
35. Following the aforesaid principles, this Court is constrained to hold that the decision in Va Tech [(2011) 13 SCC 261] having been rendered per incuriam, cannot be accepted as a precedent to decide the controversy in this case."
32. This Court relied upon the judgments of Narata Ram, Dhameswar Sahoo (supra) and Makhan Lal (supra) while deciding Bir Singh (supra) to hold that the Court was required to issue a notice and afford an opportunity to the surety to produce the accused or provide an explanation before forfeiture. The judgment in Dhanvir (supra) of this Court was not brought to the notice of the Court deciding Bir Singh (surpa). In my humble understanding and the interpretation of Section 446 of Cr.P.C. by various High Courts, Section 446 of Cr.P.C. does not provide for any ::: Downloaded on - 01/08/2024 03:11:57 :::CIS notice before the order of forfeiture is passed and violation .
of the terms of the bonds is sufficient for its forfeiture.
33. If the notice is issued to produce the accused before forfeiture, it can lead to delay, as the accused can successfully avoid appearance in the Court and can always appear after the receipt of the notice. This will frustrate the purpose of taking the bonds and will lead to undue delay of the disposal of the criminal cases.
34. Hence, I respectfully differ with the judgment in Bir Singh (supra) that a notice is required to be given to the surety before forfeiting the surety bond.
35. Hence, the matter be placed before Hon'ble the Chief Justice for referring it to Larger Bench, if deemed proper, to determine the following question of law:
Whether a notice is required to be issued to the surety before forfeiture of his bond?
(Rakesh Kainthla) Judge 31st July, 2024 (Nikita) ::: Downloaded on - 01/08/2024 03:11:57 :::CIS